Q:
I have both medical and durable power of attorney
(POA) for my mother, who is living in a memory care facility. She has
not been declared incompetent, but is obviously not competent anymore.
She printed these POAs years ago with an inkjet printer, got them
notarized, and gave me one original. The quality is not great. I am
trying to sell some timeshares to help save her money and I am told that
I need to send an original to the timeshare company and each county it
has property in. I only have one original and I really don't want to let
it out of my sight. Is there any way to get this document validated in
some way and get more of them so I can give them to all these people who
want originals? Also, the bank refused to accept my POA because of the
poor quality.

A:
Unfortunately, it’s not unusual for banks to refuse to honor durable powers of attorney
for one reason or another. In terms of the timeshares, I’m surprised
that they need more than one original since timeshare ownership is
usually not recorded like real estate. I’d push back on this. They may
be able to see the original and return it to you after making a copy or
they may accept a copy certified to be true by a notary or a lawyer. I’d
run all of these possible solutions by them. If they won’t work, you
may need to go to court to be appointed guardian or conservator for your
mother. For more information on guardianships, go here: http://www.elderlawanswers.com/guardianship/conservatorship.

Oscar: “With good reason Felix. The doc just told me I got that AAFV thing.”

Felix: “D... Oscar, that’s a tough way to go. Look, drinks are on me today.”
Yes, dear readers, the medical profession has come up with a
new designer disease specifically minted for those of us who pace in
front of the group mail box on the 27th of every month.

This affliction is called “age-associated financial
vulnerability” or AAFV which gives it a medical gravitas that rivals
other afflictions that have been branded as acronyms. It also reminds us
that our ages and the thickness of our wallets are two of life’s
measurements that tend to go in opposite directions.

We all know that financial pressures mount as we age. Well, a
report just published in the Annals of Internal Medicine, the
scribblings of the American College of Physicians, states that doctors
have been overlooking the medical implications. The report claims that
one of the most devastating problems of aging is the decline in a
patient’s ability to manage his or her financial affairs.

The authors of the report – wealthy middle-aged doctors no
doubt – say it is their hope that by assigning a medical name to this
sad state of financial affairs physicians will start thinking about this
in all older people. This would place AAFV diagnosis in the same class
of social geriatric medicine as the current testing of seniors on their
cognitive ability to drive safely.

AAFV is described as “a pattern of risky behavior related to
money that places an older adult at substantial risk for a considerable
loss of resources that might result in dramatic changes in their quality
of life and is inconsistent with choices the person made when they were
younger.”

Financial exploitation is the most common form of elder abuse
and it can lead to depression, nursing home placement and increased
mortality, the report’s authors say.

Factors that can contribute to financial vulnerability among
the elderly include cognitive or emotional decline; impairments in
vision, hearing and mobility; serious progressive illness; and social
isolation.

Meanwhile, as if to reinforce the grim news above, the credit
firm Equifax reports that Canadians 65 and older increased their debt
loads by almost five per cent in the second quarter of 2015, a much
faster pace than the general population.

The average senior owed about $15,000 at the end of June. That represents debt on top of home mortgages.

“We have been observing that this segment has been increasing
debt for a while now,” says Regina Malina, a senior director of
insights at Equifax. She suspects a lot of that consumer debt stems from
having to help adult children or other family members with their own
financial hardships.

Seniors are having trouble paying off that new debt. The credit
firm says seniors who are 90 days or more behind on their bills are
deemed to be severely delinquent. By that measure, the delinquency rate
for seniors rose this year for the first time since 2010. That rate
increased by 2.4 per cent during the second quarter. It went down for
all other demographic groups.

What’s this all mean for vulnerable, cash-strapped seniors? We
better start lobbying the new federal government for increased pensions.
And, don’t be surprised if your doctor starts checking your financial
pulse. Managing life’s daily challenges in our Golden Years has,
officially, become a health risk.

Managing money can be difficult at any age but for older adults,
changes in physical condition and life circumstances can lead to changes
for the worse in financial behavior, putting their well-being in
danger.

Now those changes have been given a name: age-associated financial vulnerability.

The authors define the condition as "a pattern of financial behavior
that places an older adult at substantial risk for a considerable loss
of resources such that dramatic changes in quality of life would
result." To be considered AAFV, this behavior also must be a marked
change from the kind of financial decisions a person made in younger
years.

"For example, if an older adult gives his or her neighbor $10,000,
this many be a sign of AAFV. However, if the older adult has given large
sums of money to those in need throughout his or her adult lifetime,
then the $10,000 gift in old age may not represent a change in behavior,
and thus may not represent AAFV," explains Duke Han, PhD, co-author of
the study and associate professor of behavioral sciences at Rush
University Medical Center.

Not the same old problem
The authors note that AAFV is a condition different from age-related
cognitive impairment, including dementia, which already is recognized as
putting older adults at risk of causing themselves financial harm.
Since recent studies have indicated that "cognitively intact older
adults" may become financially vulnerable, they write, "cognitive
impairment is not necessary for AAFV."

Instead, the trouble can lie in the many ordinary changes brought
about by aging. "Functional changes such as impaired mobility, vision
and hearing loss, and the cost of multiple medications can directly
influence vulnerability in older adults," Han says.

Other potential contributing factors may include cognitive changes,
such as a lessened ability to discern a person's trustworthiness, and
psychosocial problems, including loneliness or depression. In addition,
the finance industry has identified older adults as an untapped market,
which can lead to them being overwhelmed by the "dizzying array of
financial products and services," according to Han and co-author Mark
Lachs, MD, MPH, professor of medicine and co-chief of geriatrics and
gerontology at Weill Medical College in New York.

"In my discussions with Dr. Lachs about our experiences with the
heart-breaking effects of financial vulnerability among our older
patients, we decided that naming the problem may be a useful first step
to addressing the issue," Han says.Protecting the vulnerable from the villainous
Han and Lachs believe it's important to understand AAFV as a
condition in order to protect older adults who exhibit signs of it,
distinct from behavior brought on by cognitive impairment or problems
with financial judgement that preceded older age. In particular, AAFV
can put a person at risk for financial exploitation: Han notes that
financial abuse is one of the most common forms of elder abuse, and is
the most frequent form of perpetrator-related elder abuse in Illinois.

"This is a growing problem since we have a large aging population
with no ways to determine who is at risk and why," Han warns. "We need
more screening, and more interventional programs and strategies to
address this issue. We also need to determine what the role and
responsibility is of physicians in protecting their patients."

Published in the Annals of Internal Medicine.Source: Rush University Medical Center

Friday, November 6, 2015

The
Clark County district attorney's office on Wednesday announced the
creation of a new elder abuse unit to prosecute crimes against the aged
and vulnerable.

Cases involving physical or mental abuse, neglect,
isolation and financial exploitation will now be prosecuted by two
specialized deputy district attorneys. Those cases had previously been
handled by the office's general prosecutions teams.

"The
protection of our seniors from fraud, theft and abuse is the
responsibility of all agencies in the criminal justice system," District
Attorney Steve Wolfson said in a release. "These crimes target some of
our most vulnerable citizens, can be devastating to a family, and have
far-reaching impacts on our community as a whole."

According to the news release, 61 cases qualified as elder abuse cases in 2014, and 32 through the first half of 2015.

"We
are pleased that District Attorney Wolfson has recognized the need for
specially trained prosecutors, who can ensure that those who abuse and
exploit our senior population are brought to justice," Sugar Vogel,
Executive Director of the Southern Nevada Senior Law Program, said in
the release. "All too often, those abused are dependent, in some way, on
their abuser. It is important that their call for help will not fall on
deaf ears."

This story comes from a shopper who recently encountered an extremely
rude and insensitive woman. The rude woman was annoyed because an
employee with down’s syndrome was packing the bags carefully but taking
longer than she wanted. She started to humiliate him in front of
everyone until the cashier suddenly had enough…

Thursday, November 5, 2015

A retired Clinton Township chiropractor whose biological children
waged a public battle over his guardianship and health care died this
week at 78.

James Chism died Oct. 24. He had owned and operated Chism Chiropractic in Fraser.

His health became a public issue beginning in December 2011 when
three of his five adult children accused their father’s wife of 27 years
at the time, Karen Chism, not their mother, of orchestrating efforts to
accelerate his health problems and blocking their efforts to see him.
He was diagnosed with dementia, taking prescription drugs and admitted
to a mental hospital, Henry Ford Macomb Hospital in Mount Clemens, and
later to Henry Ford Macomb Hospital in Clinton Township after suffering a
heart attack.

The children -- Steve Chism, Susan Lucier and Laurie Meagher --
protested publicly by picketing in front of the Mount Clemens facility
and protesting on Facebook, creating the page, “Saving the lift of Army
vet James F. Chism,” which has 1,526 members. They all resided out of
state.

Karen Chism had gained guardianship over him in December 2011,
and they accused her of moving assets and selling his practice at a low
price.

Steve Chism said this week that he remains “disgusted” with the
state probate system that prevented them from having more involvement
with their father.

He said since September 2012 when James Chism’s guardianship was
removed, he and his siblings’ contact with their father continued to
dissipate due to Karen Chism blocking their efforts. He said they barely
had contact with him the past couple of years despite attempts to do
so.

He maintains his belief that his father died prematurely.

“I knew he had at least 10 good years left in him,” he said this week.

He said he believes his father suffered from the effects of his
treatment in 2011 and ‘12, and was not treated properly in recent years
after the guardianship was lifted. He said he believes his father was
over-medicated with prescription drugs, which he said is tragically
ironic since James Chism kept himself in top-notch shape and believed in
natural healing over prescription-drug use.

The obituary didn’t name his natural offspring, only saying he is survived by “five biological children.”

Steve Chism said he would like to see a law passed that mandates
that adult children can visit their biological parent even if the
parent’s spouse opposes it. A battle between the wife of the late Casey
Kasem and his biological child brought national attention to the issue.

But Michele Fuller, a Sterling Heights elder-law attorney, said
existing “laws and processes” with the probate court system in Michigan
provide avenues for adult children to pursue visitation. She said
children can petition a judge for a guardian to allow visitation or can
seek to have a guardian replaced by a child or another attorney. If the
parent does not have a guardian, the children can petition to be one or
have one named.

Fuller, who operates the Michigan Law Center, noted that if there
is estrangement between the parent and child, and the parent does not
wish to see the children, it can be difficult to gain visitation.

Karen Chism said she looked out for the best interests of her
husband and accused her husband’s children of lying, making disparaging
remarks and threatening to take the couple’s assets. She said Steve
Chism wrongly accused her of trying to murder her husband, and that she
was interviewed by a Clinton Township police detective.

During the height of the dispute, Karen Chism in 2012 filed for a
personal protection order against the three children, but a Macomb
County Circuit Court judge denied it following a hearing in Macomb
County Circuit Court in Mount Clemens.

She said it was not her but the children’s comments about her that turned her husband against them.

James Chism’s appointed attorney in 2012, Patricia
Patterson-Courie, who advocated for his freedom from guardianship, said
this week that when Chism gained independence, “He was upset with the
way they (his children) treated his wife.”

“He was adamant, insisting he wanted to be home with his wife.”

Steve Chism said his father was influenced against them by Karen Chism.

Patterson-Courie said she did not wish to take sides in the case.
She said she understood the children’s suspicions but didn’t find
nefarious intent by Karen Chism.

“He had made such a miracle recovery from a near comatose state,”
she said. “The circumstances looked strange. You can see why the
children had suspicions and concerns, but none of that could be found.”

She said some of Karen Chism’s actions were part of an attorney’s
advice to spend their money on “exempt” items that would allow him to
qualify for Medicaid.

She said “mistrust” developed between the children and Karen
Chism, partly because the children lived far away. “It’s really a shame
there was that much mistrust and division,” she said.

“I’m sorry to see that he passed,” Patterson-Courie said of James Chism. “He was a very engaging, sweet man.”

An Eastern Carolina judge is charged with trying to bribe an FBI
agent to collect text messages between two phone numbers in what the
judge said was a family matter.

Federal prosecutors on Wednesday announced the
charges against Superior Court Judge Arnold Jones II. Jones is the
resident superior judge for Wayne County, and is chairman of the North
Carolina Innocence Inquiry Commission.

The judge appeared in federal court in Raleigh for a first court appearance this morning.

It's illegal for law officers to demand text or
phone information from a phone company without an approved search
warrant in an active case.

Prosecutors say Jones approached the unnamed FBI
officer on October 10th and the two met in Goldsboro on Tuesday to
exchange $100 for a disk supposedly containing the data.

The three count indictment was made public this
morning. The charges against Jones are: promise/payment of bribe to a
public official, promise/payment of gratuity to a public official, and
attempted corrupt influence of official proceeding.

The indictment says at first the judge and the FBI officer agreed on "a couple cases of beer" for obtaining the texts.

If convicted of all charges, Jones could face up to 37 years in prison.

A state courts spokeswoman says it would be up to
the North Carolina Judicial Standards Commission to take any
disciplinary action against Jones.

Lawyers at the Wayne County Courthouse said that superior court was cancelled today.

The judge, who was first elected in 2008, has
heard some high profile cases in the past several years, including
presiding over the first appearance of the suspect in the shooting death
at Wayne Community College. The defendant was forcibly removed from
the courtroom after a profane outburst directed at the judge.

Wednesday, November 4, 2015

Maine’s highest court will hear arguments Wednesday on whether to
discipline an elected York County probate judge who is accused of
abusing his office to benefit himself personally and his private legal
practice.

Robert M.A. Nadeau

The part-time probate judge, Robert M.A. Nadeau, has already been
publicly reprimanded multiple times in the past, including being
suspended from his judicial duties for 30 days in 2007 by the same Maine
Supreme Judicial Court.

The Committee on Judicial Responsibility and Disability is now
recommending that Nadeau be suspended without pay from his judicial
duties for four weeks and pay $4,000 to hire a substitute judge in his
absence.

A panel of justices on the Supreme Judicial Court will weigh
arguments from the committee’s executive secretary, Cabanne Howard;
arguments from Nadeau’s attorney, Stephen Wade; and findings from an
active-retired judge, Justice Robert Clifford, who heard testimony in
the case against Nadeau.

“A single oral argument will be held, and the parties should be
prepared to present their arguments regarding the findings and
conclusions of the referee justice (Clifford) as well as the sanctions,
if any, to be imposed in this matter during that argument,” Chief
Justice Leigh Saufley wrote in a scheduling order in August.

Nadeau, who has a private law practice in Biddeford, is accused of
five different violations of the Maine Code of Judicial Conduct stemming
from complaints lodged against him by six other attorneys in 2012 and
2013.

Nadeau was first elected as the York County probate judge in 1996 and
was re-elected in 2000 and 2004. He was defeated in 2008 after
disciplinary actions against him but then elected again in 2012.
Nadeau was suspended from his duties as a judge in 2007 by the Maine
Supreme Judicial Court for lying about his opponents in his campaign for
re-election in 2004.

He was publicly reprimanded prior to that by the Maine Board of
Overseers of the Bar in 2006 for violating the Maine Bar Rules in a
divorce case from his private practice in which he had a sexual
relationship with his client. He was found in violation of bar rules for
faxing messages directly to the opposing party in the divorce case
rather than the attorneys in the case. Nadeau was married and had
children at the time, according to court records.

The first of the five new counts against Nadeau accuses him of
creating a website in the name of “York County Probate Judge Robert
Nadeau” that links to his for-profit private practice website.
Clifford
said in a finding issued in May that Nadeau’s conduct pertaining to the
website was a judicial code violation but not an egregious one since
Nadeau deleted the link after learning of the complaint.

The second count accuses Nadeau of creating a Facebook page that
claimed to be the “official page of the York County Judge of Probate
Robert Nadeau” that shows pictures of him in judicial robes, in a
business suit with his family and in a military uniform from his time in
military service. Clifford also found that to be a judicial code
violation, though not egregious since Nadeau took it down after a
complaint. Clifford found two clear judicial code violations in the
third count against Nadeau, in which he is accused of using his title of
judge to inappropriately try to influence a personal civil case that he
filed against an ex-girlfriend.

Clifford disagreed with the Committee on Judicial Responsibility and
Disability on the fourth and fifth counts against Nadeau and found
Nadeau had not committed judicial code violations. Both counts pertain
to Nadeau’s civil case against his ex-girlfriend that he filed claiming
that she was harassing him by disclosing his confidential medical
information.

The fourth count accused Nadeau of trying to force a District Court
judge to recuse himself from hearing Nadeau’s harassment claim. The
fifth count accused Nadeau of referencing a court document filed in
Probate Court during the harassment case that referred to him as “his
eminence.”

Nadeau’s attorney, Wade, has argued in written filings that none of
the new accusations against Nadeau are violations of the judicial code
and that he should not be punished.

Howard argued in writing on behalf of the Committee on Judicial
Responsibility and Disability that Nadeau had been warned leading up to
his 2006 and 2007 punishments and didn’t heed the past warnings.

“One possibly inadvertent violation might be excusable, but the
multiplicity of the violations here demonstrates a pattern of disregard
for the code that the court should deal with firmly, since to do
otherwise might encourage other judges to behave in a similarly cavalier
fashion, as well as play into the public cynicism as to the willingness
of the judicial branch to discipline its own,” Howard wrote in a brief
to the court in September.

ANCHORAGE, Alaska (CN) - In the last five years, the caseloads of public guardians in Alaska have steadily increased to a current total of 83 wards for each guardian. This leaves guardians with the Office of Public Advocacy just one hour and 42 minutes per month to manage each ward's medical care, government benefits, housing, vocational services and any income the ward is eligible to receive.

"Public guardians are some of the hardest working people in this state. But, when you saddle them with twice as much work as humanly manageable, there is one obvious result - thousands of disabled Alaskans suffer. This lawsuit will end it," said Meg Zaletel, a partner with the Anchorage-based Northern Justice Project that represents M.M. in his class action filed Oct. 26 against the state of Alaska, the Office of Public Advocacy and its oversight agency the Department of Administration.

Alaska's guardian caseload is more than double the national standard of 40 set by the National Guardianship Association, a membership organization representing professional guardians from across the United States. Even the Office of Public Advocacy admitted in its 2016 budget request that the office is chronically underfunded and its hard-working guardians are unable to keep up with their increasing caseload.

Under to Alaska statute, a guardian must visit each of their protected persons at least once per quarter to monitor their welfare. There are four office locations: Anchorage, Fairbanks, Palmer and Juneau.
But Alaska is a large state where many wards live more than a short drive from their guardian's office. Some require travel by air or boat.

Plaintiff M.M. is on the autism spectrum. In 2014, a court ordered that all his affairs be managed by a public guardian. The Office of Public Advocacy charges wards a monthly fee for its services, plus an initial case set-up fee upon appointment as guardian.

According to the complaint, M.M.'s public advocate has not submitted the proper paperwork so that his supplemental security income continues and has not had adequate time to insure that critical Medicaid benefits remain in place. As a result, M.M. has been left without funds for groceries and other essentials for basic living including rent for his group home. He now stands on the verge of homelessness.

He has attempted unsuccessfully to contact his guardian by phone. He also tried going in person to his guardian's Anchorage office, where he was told that his guardian was not available to see him. He has also not received the mandated quarterly in-person visits.

It took a friend of M.M.'s, Erin Kirkland - listed on the complaint as his "next friend" - to seek legal help. Kirkland declined to comment and referred Courthouse News to Zalatel, whose firm is representing M.M. pro bono.

"We fully expect that [the Office of Public Advocacy] will want to address our requests," Zalatel said. She explained that the defendants have 40 days from the date the complaint was filed to respond.

M.M. seeks an order requiring caseworkers to visit their wards once per quarter and that they will have no more than 40 wards per guardian as the National Guardianship Association recommends. He also wants a refund of the monthly fees for each quarter that guardians did not visit their wards.

Leslie Ridle, deputy commissioner for the state of Alaska Department of Administration defended the agency in an email to Courthouse News.

"The Office of Public Advocacy does an excellent job providing guardians to vulnerable Alaskans," Ridle said. "We are constantly working to create efficiencies in the division to make sure resources are used to help our clients. We are reviewing the case, and at this time we have no further comment."

In his complaint, M.M. says he recognizes that Alaska's public guardians are working extremely hard under an overwhelming set of circumstances. Zalatel said she hopes her client's lawsuit changes things for the guardians and their wards.

"The intent of this lawsuit is to help," she said. "Ultimately, [plaintiffs and defendants both] want to the best possible care for thousands of disabled Alaskans."

In a replay of a
trial nearly two years ago, a Boyle County jury deadlocked again on the
question of whether Anne Rush committed a crime by exploiting her
elderly grandmother for her own financial gain.

Circuit Judge
Darren Peckler was forced to declare another mistrial Friday after
jurors deliberated for three hours and came out hung, with nine in favor
of acquittal and three voting for conviction. A unanimous verdict is
required in criminal cases.

Last week’s five-day trial mirrored the one in
February 2014, with the same special prosecutor, Barbara Whaley of the
attorney general’s office, and the same defense attorneys, Travis Lock
and John Reynolds of Bowling Green, arguing over the same evidence and
producing the same result.

Whaley presented stacks of documents showing the
financial records of Geraldine Waits, Rush’s grandmother who was
diagnosed with early stage dementia in 2007 and whose condition worsened
until Rush became her caretaker in 2010.

Rush took advantage of Waits’ deteriorated mental
state to drain her bank accounts and take possession of her property,
altogether valued at about $200,000, Whaley told jurors in her lengthy
closing argument Friday morning.

After gaining power of attorney and placing Waits
in a nursing home, Rush cashed in her grandmother’s certificates of
deposit and bought a pickup truck, paid care for her horses and deeded
herself Waits’ 57-acre farm on Scrubgrass Road, Whaley said, leaving
Waits unable to pay for her nursing home care.

Waits died last year, a ward of the state.

“It’s not a robbery, it’s not an assault, it’s
not a sexual offense, but it’s no less a crime,” Whaley said of the
statute under which Rush was charged, exploitation of an adult more than
$300. “It’s a crime what she did to an 86-year-old woman, her own
grandmother.”

And, just like in 2014, Rush’s attorneys argued
that Waits granted Rush power of attorney over her affairs because her
granddaughter had cared for her as her condition worsened. The power of
attorney agreement that Waits signed gave Rush the authority to give
gifts to herself and others.

In his closing argument, Lock described the case
as “a family squabble that ended up in criminal court.” He accused
Whaley of using “smoke and mirrors” to manufacture her case against
Rush.

“The commonwealth wants you to believe Anne Rush
forced her grandmother to give her power of attorney. That’s what granny
wanted! Where is the evidence to the contrary? There is none,” Lock
argued. “That power of attorney gave Anne Rush the legal authority to do
what she did, even if you don’t like what she did.”

This Watchdawg has dedicated himself (ca. 1988-2010) to exposing the misconduct and/or outright corruption involving Judges, Attorneys and Public Officials in all fifty states and foreign countries if warranted.

I have absolutely no concern about anyone’s political party affiliation and/or his or her stated opinions on legal and/or political questions of the day. Put simply, I am an “equal opportunity exposer.” As ex-Detroit Free Press reporter Alan Abrams said in an article several years ago, “If you’re a dishonest judge or lawyer, the watchdog is your worst nightmare.”

Monday, November 2, 2015

The attorney suing the Forsyth County Clerk of Superior Court Office,
an estate guardian, and others over alleged “acts of fraud” involving
the loss of over $1.4 million in assets belonging to a now deceased
African-American retired nurse, claimed in court papers a year ago that
he has evidence that this wasn’t just a one-time occurrence, but rather,
“a pattern and practice of fraudulent activity by the Clerk’s Office…,”
and that specific guardian.

Even though The Chronicle is focusing on allegations centered at the
Forsyth County Clerk’s Office, the allegations of fraud in the
quasi-judicial process of determining legal guardians for incapacitated
individuals could have statewide implications if they’re being
replicated in other counties without investigation.

Reginald D. Alston, the attorney representing the estate of the late
Mary Ellen Brannon Thompson (legally known as the “ward”), made the
allegation in the lawsuit he filed last week (as exclusively reported by
The Chronicle) against the Forsyth County Clerk of Superior Court
Office, which administers guardianships; and attorney Bryan Thompson (no
relation to Mary Thompson), the estate guardian alleged to have had an
official in the Forsyth County Clerk’s Office on May 1, 2007, “… sign a
guardianship appointment in his favor…. without giving notice to Mary
Thompson [while she was living] and her next of kin…” as required by
state statute.

Alston also made the allegation in several motions he filed in the case dating back to March 2014.

As the Clerk appointed estate guardian, attorney Thompson was
responsible for managing the ward’s over $1.4 million in liquid and real
estate assets. But in the Oct. 20 lawsuit, attorney Alston,
representing Calvin Brannon – Mary Thompson’s brother and the estate
administrator representing next of kin – maintained that attorney
Thompson had no legal right to oversee the estate because there was
never any evidence of the ward’s incompetence presented (which is
required in order for an estate guardian to be appointed by the Clerk in
North Carolina), a key element in determining the legal reason for a
guardian.

Without that evidence, attorney Thompson should never have been
appointed, the lawsuit contends. But in addition, the orders issued by
the Clerk’s Office declaring Mary Thompson as incompetent, and attorney
Thompson as her legal estate guardian, were never officially filed into
the court record via time stamp, as legally required.

“The order is devoid of any stamp-file or other marking necessary to
indicate a filing date, and therefore it was not entered,” ruled the
N.C. Court of Appeals in a February 4, 2014, decision.

And in addition, as attorney Alston contends in the lawsuit, attorney
Thompson’s May 1, 2007, appointment as estate guardian came before the
Clerk’s May 3, 2007, Order of Incompetence, which could not stand given
that the ward had to be legally determined incompetent first before any
guardian could be assigned.

Forsyth County Clerk of Superior Court Susan Frye apparently took
that February 2014 appellate court ruling to heart. On April 9, 2014,
she issued a “Findings of Fact” in the Mary Ellen Thompson case,
acknowledging per the appellate decision that “… the orders were not
properly entered…,” thus creating “… an inadvertent defect…”

However Frye, who was re-elected to her second-term in November 2014,
decided she could deal with that 7-year-old “inadvertent defect” by
simply declaring that the orders could be belatedly entered per the
legal principle of nunc pro tunc, which is Latin for “now for then,”
meaning that if a court makes a mistake in a previous order, it can
correct it subsequently.

She ordered all of the orders to be re-entered under their original
dates nunc pro tunc, except the order authorizing attorney Thompson to
become the ward’s estate guardian. On that one, realizing the conflict
of dates, she had that changed from May 1, 2007 to May 3, 2007, to match
the original date of the incompetency order.

But the ward’s estate attorney, Reginald Alston, apparently already
aware that Clerk Frye would attempt to dodge the appellate court
findings, opposed Frye’s coming order in his April 1, 2014, motion to
Superior Court, writing, “Counsel objects to the nunc pro tunc filing of
the May 3, 2007 Order of Incompetence in this matter as an attempt to
legitimize the fraudulent actions of Bryan Thompson and [former
assistant Clerk] Theresa Hinshaw, and protects the interests of the
Court as opposed to those of Mary Ellen Brannon Thompson.”

Hinshaw is the official in the Clerk’s Office in 2007 who attorney
Alston alleges “colluded” with attorney Thompson in the issuing both
defective orders in the Mary Thompson case.

Clerk Frye’s order was eventually appealed and subsequently found to
be procedurally improper by a Superior Court judge. It was sent back for
a hearing in the Clerk’s office.

In that same April 1, 2014, motion by Alston, he stated that, “…
counsel has previously raised the issue of fraud and collusion by Clerk
Theresa Hinshaw and Bryan Thompson in regards to this special proceeding
and estate and other similar cases in Forsyth County.”

Alston further said in his motion that Clerk Frye “refused to accept
the documents marked for trial as Exhibit H and consisting of a listing
of [over 40] Estate matters in which Bryan Thompson was handling the
estate.”

Attorney Alston went on to state that “… as part of my investigation
of the alleged fraud, I pulled the Estate files for several individuals
whose estates had been handled by Bryan Thompson…” Each case had a
special proceeding regarding an estate where Bryan Thompson was
appointed, Alston continued, and, “That none of the cases had a
filed-stamped order of incompetence nor filed-stamped order appointing
anyone guardian of the Estate or Person.”

Alston went on to list four cases by file numbers that he personally
reviewed to document his allegation, and then stated a reason he
believed the pattern even existed.

“…[C]ounsel believes the failure to file stamp the Orders was
utilized as a means to prevent removal of the guardians and facilitate
Bryan Thompson … to fraudulently maintain the position of guardian
without properly filed Orders authorizing [his] actions.”

In a previous motion before the court dated March 31, 2014, attorney
Alston was blunt, stating, “That the issuance of letters to Brian
Thompson by [Clerk] Theresa Hinshaw without a properly filed Order of
Incompetence was not an error or unique circumstance, but an act of
fraud that has been repeated in other special proceedings in Forsyth
County and evidences a pattern and practice of fraudulent activity by
the Clerk’s Office.”

Months later, in October 2014, Mary Ellen Thompson, who had been in
ill health, died. But even though it had been clearly established before
her death that Bryan Thompson’s estate guardianship was in controversy,
no relief was forthcoming.

“Between May 1, 2007 and October 2, 2014, Bryan Thompson did not
return the assets that he took by fraud from Mary Thompson valued at $1,
486, 415.49,” attorney Alston alleges in the estate’s Oct. 20 lawsuit.
The suit seeks compensatory and punitive damages from, “… the Clerk’s
bond in the amount of all property value that [the ward] lost due to
Bryan Thompson’s acts and the regulatory failures of the Clerk of Courts
in an amount that exceeds $25,000.”

The lawsuit also seeks compensatory and punitive damages from two
insurance companies on the bond issued to protect Mary Thompson’s assets
as required by law; and two other attorneys for their alleged roles in
what the suit maintains was a case of fraud.

Finally, the suit seeks all of Mary Thompson’s assets returned to the estate, and to hold attorney Bryan Thompson liable.

Defendants had not responded to the Mary Thompson estate lawsuit by press time.

As Dean Cole's dementia worsened, he began wandering at night. He'd
even forgotten how to drink water. His wife, Virginia, could no longer
manage him at home. So after much agonizing, his family checked him into
a Minnesota nursing home.

"Within a little over two weeks he'd
lost 20 pounds and went into a coma," says Mark Kosieradzki, who was
the Cole family's attorney. Dean Cole was rushed to the hospital, says
Kosieradzki, "and what was discovered was that he'd become totally
dehydrated. They did get his fluid level up, but he was never, ever able
to recover from it and died within the month."

Kosieradzki
says that Virginia Cole had signed a stack of papers when her husband
was admitted to the nursing home. As is often the case, one of the forms
was a binding agreement to go to arbitration if she ever had a claim
against the facility. So instead of taking the nursing home to court,
her claim for wrongful death was heard by three private arbitrators.
They charge for their services.

"The arbitration bill for the judges was $60,750. That was split in half between the two parties," says Kosieradzki.

Virginia
Cole won her claim, but after paying the arbitrators, expert witnesses
and attorney's fees, she was left with less than $20,000.

The federal government is now considering safeguards that would
regulate the way nursing homes present arbitration agreements when
residents are admitted.

But more than 50 labor, legal, medical and consumer organizations have told the government that's not enough. They want these pre-dispute arbitration agreements banned entirely. Thirty-four U.S. senators and attorneys general from 15 states and the District of Columbia also have called for banning the agreements.

"No
one should be forced to accept denial of justice as a price for the
care their loved ones deserve," says Henry Waxman, a former congressman
from California. Arbitration agreements keep the neglect and abuse of
nursing home residents secret, Waxman says, because the cases aren't
tried in open court and resolutions sometimes have gag rules.

"None of the systemic health and safety problems that cause the harm will ever see the light of day," he says.

The proposed federal regulation
would require nursing homes to explain these arbitration agreements so
that residents or their families understand what they're signing. It
would also make sure that agreeing to arbitration is not a requirement
for nursing home admission.

The American Health Care Association,
which represents most nursing homes, is against this proposed change in
the rules. Clifton Porter II, the AHCA's senior vice president for
government relations, says that's because "they're prescribing us to do
things that we, frankly, already do." Porter acknowledges, however, that
practices vary from facility to facility, depending on state law.

Arbitration
agreements, he says, are common throughout the health care industry —
in hospitals, surgery centers and doctors' offices. "Why aren't rules
being promulgated to eliminate arbitration in those settings?" he asks.

In any case, Porter says arbitration is more efficient for both sides than going to court would be.

"It
actually allows consumers to get an expedited award," he says. "And you
have the benefit of not having to use the courts and go through the
entire process."

But that expedited award is about 35 percent lower than if the plaintiff had gone to court. That's one conclusion of a study commissioned by Porter's organization in 2009.

If
the federal government does regulate or ban the signing of arbitration
agreements for new nursing home residents, Porter says the American
Health Care Association will probably fight the move in court.

Sunday, November 1, 2015

A native of Shreveport, Louisiana, Louise Hicks has called Southern California home since she relocated to Long Beach in 1969. She attended California State University, Long Beach where she obtained her Bachelors’ Degree in Social Work and then went on to work for the County of Los Angeles for 32 years-retiring in 2006.

She launched L. Hicks Consulting Services, LLC in 2009 where she offers workshops, and seminars that help positively impact people on the job. She has touched countless lives with her best-selling book, “A Hill to Climb – A Teenager’s Battle with Cancer, Depression, and Drug Addiction” (published 2009 by Tate Publishing, LLC). The real-life account chronicles her experiences as she helps her 14-year-old son David, battle bone cancer, depression and later a drug addiction that plagues David in his adult life.

Her inspiring story has landed her a guest spot on CNN News and has opened doors for her to speak, inspire, and motivate audiences across the nation through motivational speaking opportunities.

Currently, Louise is promoting an initiative called AIMED 2 PURPOSE™, which is designed to inspire women, at-risk youth, entrepreneurs, and anyone who wants to improve their quality of life. As an extension of the campaign, Louise also launched an internet radio show entitled AIMED 2 PURPOSE®–The Radio Show™ in July 2014. The 1-hour global weekly show features Louise along with her eldest son Kennon Wesley Mason as they discuss a wide range of topics from spirituality, work/life management and healthy living. The show airs Mondays at 5PM Pacific, 7PM Central, and 8PM Eastern on Global Voice Broadcasting. Listeners can call in for questions and comments at (323) 522-5482. Learn more by visiting www.gvbstudios.com/show/a2p.

For more information about Louise log on www.louisehicks.biz. To schedule an appearance, speaking engagement, customer service training, or book club review contact Louise Hicks at (562) 310-1495 or email her at info@louisehicks.biz.

California’s largest nursing home owner is facing a new round of
government scrutiny as the FBI served search warrants last week at his
Riverside facility, and two more of his former top administrators have
been charged criminally by the state attorney general’s office.

Eimiller said she could not comment on
the exact nature of the federal probe because the affidavit in support
of the warrants is under seal. However, the FBI spokeswoman said it was
her understanding that agents took documents, and that “patients were
not removed or even disturbed” during Thursday’s raid at the Alta Vista
Healthcare & Wellness Centre.

We are not aware of any basis for the (FBI) investigation, but are cooperating fully with authorities.

Sallie Hofmeister, spokeswoman for Shlomo Rechnitz and his facilities

The
latest investigations shine the spotlight again on Rechnitz, a
44-year-old Los Angeles entrepreneur whose facilities have been the
focus of multiple local, state and federal probes, along with stepped-up
scrutiny by health officials.

His stable of nursing homes in
California has expanded rapidly in the last decade, giving him control
of about 1 in every 14 skilled nursing beds in the state, according to a Bee investigation.
With an estimated 80 homes under his control, Rechnitz has widespread
influence on the quality of care being delivered in skilled nursing
facilities, which serve some of the state’s most vulnerable residents.

The
Bee found that homes he owned for all of last year were tagged with
nearly triple as many serious deficiencies per 1,000 beds as the
statewide average in 2014, according to the latest figures from the
federal Centers for Medicare and Medicaid Services.

Sallie
Hofmeister, a spokeswoman for Rechnitz and his facilities, said Saturday
in an email to The Bee: “We are not aware of any basis for the (FBI)
investigation, but are cooperating fully with authorities. We cannot
comment on the specifics of the discussions with the authorities, but at
this time we have no reason to believe the investigation has anything
to do with patient care. Alta Vista is proud of the care and treatment
it provides to its patients.”

Besides last week’s FBI raid, several Rechnitz employees are facing their own legal challenges.

The
former administrator and former top nurse at one of his Orange County
nursing homes were charged criminally in August in connection with the
alleged abuse last year of two residents – one of two criminal cases
filed by the California attorney general in August against employees at
facilities owned by Rechnitz.

Joseph Munoz III and Milagros
Victoria Soqueno have been charged with four misdemeanor counts each of
inflicting injury on an elder adult and failing to report elder abuse.
Munoz had been the administrator of the 80-bed Mesa Verde Post Acute
Care Center in Costa Mesa, and Soqueno was the nurse in charge at the
time of the 2014 incidents, according to the Attorney General’s Office.

Soqueno’s
and Munoz’s charges stemmed from the discovery last year by a
Department of Public Health inspector that a resident at the facility
had been inappropriately touching other patients, and staff knew about
it but failed to immediately report the incidents or protect residents
from further harm, said AG’s spokeswoman Kristin Ford. After prompting
from health officials, the facility eventually filed the mandated abuse
reports, she said.

Arraignment is set for Dec. 10 in Orange
County, and the case is being handled by the AG’s Bureau of Medi-Cal
Fraud and Elder Abuse.

Hofmeister, spokeswoman for Rechnitz and
his facilities, said that “no employees were arrested at Mesa Verde Post
Acute Care Center.”

“The facility investigated the allegations
and the employees are no longer with Mesa Verde,” she said in Saturday’s
email. “The facility has cooperated with authorities and has not been
cited for the incident.”

Also in August, Attorney General Kamala
Harris announced that her office had filed involuntary manslaughter
charges against Verdugo Valley Skilled Nursing & Wellness Centre
LLC, a 138-bed facility owned by Rechnitz in suburban Montrose, near
Glendale. In that criminal case, the AG’s Bureau of Medi-Cal Fraud and
Elder Abuse brought felony charges against two registered nurses at the
facility, accusing them of dependent-adult abuse in connection with the
death of a burn victim, who allegedly was neglected. The preliminary
hearing in that case is set for Dec 8.

Trial could be averted

Photo: Associated Press File Photo

Tom Benson’s appeal states Renee Benson
did not prove Tom Benson had breached his duties as trustee of the
Shirley Benson trust. It also states that the probate court had not
given adequate notice that receivership was a possibility.

Lawyers for both billionaire Tom Benson and his daughter and
grandchildren agreed Monday to seek an agreement through a mediator on
future control of a contested trust, estimated at almost $1 billion in
value, left by Benson’s first wife, Shirley Benson.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

Our mission is to promote the safety and well being of vulnerable persons subject to injury and damage in their person and property through unlawful and abusive guardianship and/or conservatorship proceedings; to end the growing violations of due process, civil and human rights; to work towards ultimate legislative reform of guardianship as presently practiced; upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment; and to be a support organization for victims and their families. We carry out our mission through research, outreach, education and advocacy; and going forward, by alliance with community interest, law reform, civil rights and other advocacy organizations.

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